承攬勞動關係之研究 : 就國勞承攬勞動公約草案論爭之探討

Abstract

隨著全球化經濟時代的來臨，台灣不可避免的將處於一個大競爭之環境中，為提高競爭力並降低營運成本，於是中小企業，甚至大型企業紛紛精簡人事成本及大幅裁員，或僅保留行政中心部門，而將生產線完全外部化（外包或廠外委託加工）。在台灣，外包制度等廠外勞動絕不僅是扮演企業生產的輔助性角色，其對於台灣經濟成長具有絕對地貢獻。外包制度中的勞工雖提供本身僅有的勞動力供企業使用，但往往因被視為次級勞動力市場之勞工，無法立於初級勞動力市場之勞工地位而享有勞動法的保障，不論其勞動報酬或工作條件通常低於從事類似性質工作的初級勞動力市場之勞工（歧視待遇）。

The first discussion of the question of contract labour took place at the 85th Session (1997) of the International Labour Conference. The International Labour Office prepared and communicated to the governments of member States a report containing a proposed Convention and a proposed Recommendation concerning contract labour, based on the conclusions adopted by the Conference at its 85thSession.based on this proposal text, named \"Contract Labour Convention\" and \"Contract Labour Recommendation\", \"contract labour\" was defined as \"work performed for a natural or legal person (referred to as a \"user enterprise\") by a person (referred to as a \"contract worker\") where the work is performed by the worker personally under actual conditions of dependency on or subordination to the user enterprise and these conditions are similar to those that characterize an employment relationship under national law and practice and where either: (1) the work is performed pursuant to a direct contractual arrangement between the worker and the user enterprise; or (2) the worker is provided for the user enterprise by a subcontractor or an intermediary\", resembling a specific relationship between \"contract of service\" and \"contract for service\". But the amendments or comments from member government of ILO were very complicated and strict, main confusion as follow: will the proposal Convention result in a brand new type of workers or \"third category\" of workers out of independent contractor and traditional employee? Will so called \"contract worker\" entitle to be covered by labour law and enjoy full employee``s right? Will an ILO instrument that deals with matters outside the direct employment relationship be inconsistent with current commercial law and practice and the policy of reducing the regulatory burden on business or improving employment opportunities? Would Contract labour be an extremely broad and complicated issue?